3701:1-38-05
Administrative penalties.

(1)
"Repetitive violation" means a
same or similar violation that reasonably could have been prevented by a
facility's corrective action for the previous violation normally occurring
either within the past two years of the inspection at issue or the period
within the last two inspections, whichever is longer.

(a)
An active adverse impact on equipment or personnel readily obvious by human
observation or instrumentation; or

(b)
A radiological impact on personnel, the
general public, or the environment in excess of regulatory limits, such as an
overexposure, a release of radioactive material above the limits set forth in
rule 3701:1-38-21 of the
Administrative Code or a loss of radioactive material in quantities reportable
pursuant to rule
3701:1-38-21 of the
Administrative Code.

(B)
The director may assess an administrative
monetary penalty for failure of any facility required to be licensed under
Chapter 3748. of the Revised Code to comply with that chapter or rules adopted
thereunder. Any administrative monetary penalty imposed shall be assessed in
accordance with this rule. Unless otherwise provided in this rule, the director
may issue an order imposing an administrative penalty in addition to and
concurrent or subsequent to issuing a written notice of violation as provided
in rule
3701:1-38-06 of the
Administrative Code. The director may assess an administrative monetary penalty
independent of any and all other remedies that may be asserted by the
department. Any orders issued or payments or other requirements imposed shall
not affect any civil, criminal or administrative enforcement proceedings
brought under this chapter or any other provision of state or local law.

(C)
Administrative monetary
penalties specified in this rule are based upon the level of severity of the
violation which includes factors such as the importance or significance of the
violation, the length or duration of the violation, whether the violation is
repetitive in nature or is similar to previous violations, and the time period
between the current violation and any previous violation. The director may
issue an administrative monetary penalty as follows:

Severity Level of Violation Penalty

I $5,000

II $4,000

III $2,500

IV up to $500

(D)
In addition to the issuance of a notice
of violation, in the case of a severity level IV violation the director shall
do either of the following:

(1)
If within
thirty days of the issuance of the notice of violation, or such greater time as
the director may determine, the facility remedies the violation and documents
to the satisfaction of the director that the facility is in compliance, the
director shall withdraw the assessment of an administrative monetary penalty;
or

(2)
If there remain any items
of non-compliance thirty days or such greater time as the director may
determine after the issuance of the notice of violation, the director shall
maintain the administrative monetary penalty for the items of non-compliance.
The director shall reduce the administrative monetary penalty in an amount up
to fifty per cent of the penalty assessed for the violation or violations found
at severity level IV provided that the facility has corrected at least fifty
per cent of the violations.

A group of severity level IV violations may be evaluated in the
aggregate and assigned a single severity level III, if the violations have the
same or similar underlying cause or program deficiencies, or the violations
contributed to or were unavoidable consequences of the underlying problem or
program deficiencies.

(E)
In addition to the issuance of a notice
of violation, in the case of a severity level III violation the director shall
assess an administrative monetary penalty in accordance with the following:

(1)
If within thirty days of the issuance of
the notice of violation or such greater time as the director may determine the
facility remedies the violation and documents to the satisfaction of the
director that the facility is in compliance, the director may determine to
withdraw the assessment of the administrative monetary penalty; or

(2)
If there remain any items of
non-compliance thirty days after the issuance of the notice of violation or
such greater time as the director may determine, the director shall reduce the
administrative monetary penalty in an amount up to fifty per cent of the
penalty assessed for the violation or violations found at severity level III
provided that the facility has corrected at least fifty per cent of the
violations.

(F)
In the
case of a severity level I or II violation, the director shall issue an
administrative monetary penalty. The director may reduce the penalty up to
fifty per cent of the assessed amount if it is a non-repetitive violation and
the facility achieves and documents compliance to the satisfaction of the
director within thirty days of receiving the notice of violation.

(G)
Notwithstanding paragraphs (C) to (F) of
this rule, in the case of a repetitive violation, the director shall not reduce
the administrative monetary penalty specified in paragraph (C) of this rule. In
the case of a third or subsequent occurrence of the repetitive violation, the
director may increase the administrative monetary penalty specified in
paragraph (C) of this rule by an additional twenty-five per cent and continue
to increase the penalty by an additional twenty-five per cent for each
subsequent occurrence.

(H)
When a
violation occurs and the facility identifies the violation before it results in
an event or is cited by the department, the director may reduce the penalty
specified in paragraph (C) of this rule as follows:

(1)
In the case of a facility that identified
the violation as a result of observation, the director may reduce the
administrative monetary penalty assessed in accordance with paragraph (C) of
this rule in an amount of up to twenty-five per cent.

(2)
In the case of a facility that discovered
the violation as a result of a self-monitoring effort, such as an audit, test,
surveillance, design review, or trouble shooting, the director may reduce the
administrative monetary penalty assessed in accordance with paragraph (C) of
this rule in an amount up to fifty per cent.

(3)
In the case of a facility that
self-corrects a severity III or IV violation in a manner and time period
approved by director, the director shall not issue an administrative monetary
penalty.

(I)
Notwithstanding any other provision in this rule, after determination of the
severity level of a violation found by the department, the director may
increase the amount of the administrative monetary penalty as follows:

(1)
In the case of overall past poor facility
performance the administrative monetary penalty assessed in accordance with
paragraph (C) of this rule may be increased up to one hundred per cent.

(2)
In the case of a violation
that is flagrant or reckless and that results in a substantial increase in risk
to personnel, the general public or the environment, including cases in which
the duration of the violation has contributed to the substantial increase in
risk, the administrative monetary penalty assessed in accordance with paragraph
(C) of this rule may be increased up to one hundred per cent.

(3)
In the case of a willful violation within
the administrative control of the licensee, the administrative monetary penalty
assessed in accordance with paragraph (C) of this rule may be increased up to
one hundred per cent.

(J)
The facility may appeal the assessment of
an administrative monetary penalty in accordance with Chapter 119. of the
Revised Code, provided that the facility requests a hearing within thirty days
of receiving notice of the administrative penalty assessment. The director may
consolidate a hearing on an administrative monetary penalty assessed under this
rule with any other complaint or finding of the director where the director
determines that there are one or more issues of fact or law in common. No more
than one hearing will be conducted with respect to each violation alleged.